Lead Opinion
The appellant in this case, Sue S. Crump, appeals from an order of the Circuit Court of Raleigh County granting summary judgment for the defendant/appellee, Beckley Newspapers, Inc. She asserts that the tri
On December 5,1977, the defendant published an article in one of its newspapers concerning women coal miners. Photographs of the plaintiff, a miner with the Westmoreland Coal Company, taken with her knowledge and consent, were used by the defendant in conjunction with the article. Her name was specifically mentioned, and her picture appeared with Jacqueline Clements, another miner. After publication of this article in 1977, Crump had no contact with the defendant, and the defendant did not request permission to use her picture or name in any other newspaper article.
On September 23, 1979, an article entitled “Women Enter ‘Man’s’ World” appeared in one of the defendant’s newspapers. The article generally addressed some of the problems faced by women miners, and by women who desire employment in the mining industry. The article related incidents in which two Kentucky women were “ ‘stripped, greased and sent out of the mine’ as part of an initiation rite”; in which a woman miner in southwestern Virginia was physically attacked twice while underground; and in which one Wyoming woman “was dangled off a 200-foot water tower accompanied by the suggestion that she quit her job. She did.” The article also discussed other types of harassment and discrimination faced by women miners. Although Crump’s name was not mentioned in the article, her 1977 photograph was used,
As a result of the unauthorized publication of Crump’s photograph in conjunction with the article, she states in an affidavit submitted below that she was questioned by friends and acquaintances concerning the incidents contained in the article and concerning whether she had been the subject of any harassment by her employer or by fellow employees. She had, in fact, experienced no such harassment. Crump also states that the article caused one reader to ask her whether she had ever been “stripped, greased and sent out of the mine.” She alleges that the unfavorable attention precipitated by the publication of her photograph in conjunction with the article has damaged her reputation and caused her a great deal of embarrassment and humiliation. Therefore, she seeks recovery from the defendant for damages resulting from their unauthorized publication of her photograph.
After receiving a letter from Crump complaining about the unauthorized use of her photograph, the defendant offered to either (1) print a story prepared by Crump, along with her picture, explaining her position in the matter; (2) print a letter to the editor written by Crump criticizing the way in which the story was handled; or (3) publish a clarification, identifying the woman pictured as the plaintiff, and stating that Crump had never experienced any of the problems mentioned in the article. Because Crump was temporarily unemployed and did not want to jeopardize her standing with her former employer, with whom she desired to resume employment when it became available, she did not wish to call any more attention to the matter. Therefore, she declined the newspaper’s offers to clarify any false impression left by the article. Subsequently, on June 13, 1980, Crump filed an action in the Circuit Court of Raleigh County against the defendant alleging, in substance, defamation and invasion of privacy.
Upon defendant’s motion for summary judgment, the trial court held that (1) because the issue of women entering the coal industry was a matter of general public interest, the defendant had a qualified privilege to publish Crump’s photograph in connection with the article; (2) because the article did not contain any false or defamatory statements or, in fact, make any direct reference to the plaintiff other than
Because the trial court (1) limited its analysis of whether a qualified privilege existed to the content of the article, and did not adequately consider whether the use of plaintiffs photograph alone was privileged; (2) ruled as a matter of law, despite evidence from which different inferences and conclusions might reasonably be drawn, that the defendant did not abuse its privilege; and (3) failed to adequately consider invasion of privacy as an alternative theory of recovery, summary judgment was inappropriate, and we must therefore reverse.
I
The concept that a person’s reputation in the community is precious
From its adoption, our state constitution has provided for a cause of action for defamation. See W.VA. CONST. art. II, § 4 (1863). West Virginia’s current constitutional provision states that, “No law abridging the freedom of speech, or of the press, shall be passed; but the legislature may by suitable penalties ... provide ... for the recovery, in civil actions, by the aggrieved party, of suitable damages for ... libel, or defamation.” W.VA. CONST, art. Ill, § 7. The importance of protection from reputational harm within our constitutional structure is also illustrated by the provision that, “The courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay.” W.Va. Const, art. Ill, § 17 (emphasis added).
The adjudication of defamation actions has not been without difficulty. It has been said that,
No branch of the law has been more fertile of litigation than this (whether plaintiffs be more moved by a keen sense of honour, or by the delight of carrying on personal controversies under the protection and with the solemnities of civil justice), nor has any been more perplexed with minute and barren distinctions.
In West Virginia, the essential elements for a successful defamation action by a private individual are (1) defamatory statements; (2) a nonprivileged communication to a third party; (3) falsity; (4) reference to the plaintiff; (5) at least negligence on the part of the publisher; and (6) resulting injury. See Havalunch, Inc. v. Mazza,
A defamation defendant, of course, has various defenses which can be asserted. Two of these defenses, privilege and truth, allow a defendant to avoid all liability once established. There are two classes of privileges available in defamation actions: absolute and qualified. Absolute privilege is limited to those situations “where there is an obvious policy in favor of permitting complete freedom of expression, without any inquiry as to the defendant’s motives.” W. PROSSER, THE LAW OF TORTS 796 (1964). This Court has stated,
An absolute privileged communication is one in respect of which, by reason of the occasion on which, or the matter in reference to which, it is made, no remedy can be had in a civil action, however hard it may bear upon a person who claims to be injured thereby, and even though it may have been made maliciously.
City of Mullens v. Davidson,
Qualified privileges are “based upon a public policy that it is essential that true information be given whenever it is reasonably necessary for the protection of one’s own interests, the interests of third persons or certain interests of the public.” Restatement (Second) of Torts, Topic 3: Conditional Privileges, Title A: Occasions Making a Publication Conditionally Privileged, Scope Note (1977). This Court has stated that, “A qualified privilege exists when a person publishes a statement in good faith about a subject in which he has an interest or duty and limits the publication of the statement to those persons who have a legitimate interest in the subject matter. Swearingen v. Parkersburg Sentinel Co.,
The primary manner in which a qualified privilege to publish defamatory statements may be defeated is by a showing of actual malice. See City of Mullens v. Davidson, supra. A qualified privilege, however, may also be defeated by a showing of (1) an intentional publication of false defamatory material, see Spencer v. Community Hospital of Evanston,
Some examples of the types of situations in which a qualified privilege has been recognized include (1) the publication of defamatory material for the protection or advancement of the defendant’s own legitimate interests, see, e.g., Haycox v. Dunn,
The second complete defense to an allegation of defamation is truth. Article III, § 8 of the West Virginia Constitution provides, “In ... civil suits for libel, the truth may be given in evidence; and if it shall appear to the jury, that the matter charged as libelous, is true, and was published with good motives, and for justifiable ends, the verdict shall be for the defendant.” This formulation is a somewhat modified form of the traditional common law defense. See W. PROSSER, THE LAW OF TORTS 824 (1964). Under this provision, the alleged defamatory communication must not only be true, but must also have been published “with good motives, and for justifiable ends.” See Michaelson v. Turk,
One important partial defense in actions for defamation is that of mitigation. Three types of mitigating circumstances have been recognized in West Virginia. In Syllabus Point 6 of Alderson v. Kahle,
Turning to the facts surrounding the present case, it is well established that although libel is generally perpetrated by written communication, it also includes defamation through the publication of pictures or photographs. See Burton v. Crowell Pub. Co.,
In Wandt v. Hearst’s Chicago American,
In Peck v. Tribune Co.,
As noted previously, this Court has recognized that defamation may be accomplished through inference, implication, innuendo or insinuation, as well as through direct reference. In Syllabus Point 4 of Neal v. Huntington Pub. Co., supra, this Court stated, “Whether a written defamatory statement refers to a particular plaintiff, normally, is a question of fact for a jury.” As the Wandt and Peck cases demonstrate, even if the alleged defamatory material refers to another, if the implication is one of identity, the plaintiff may recover. Although it does not appear in the present case that the article involved in any way implied that the plaintiff had experienced any of the types of harassment described therein, her allegations, supported by affidavit, were sufficient to raise a genuine issue of material fact for jury consideration.
In addressing whether a qualified privilege existed which supported publication of Crump’s photograph, the trial court held that because women entering the coal industry was a matter of general public interest, the publication constituted “fair comment.” Without passing upon the issue of whether a qualified privilege did exist in this case, the Court notes that because the trial court limited its analysis to the content of the article, and did not consider whether the use of Crump’s photograph alone was privileged, its finding of a qualified privilege was inappropriate.
An appropriate analysis of the status of the publication of Crump’s photograph as an illustration to the article involved requires an inquiry into its relevance, impact and value. Simply holding that the subject matter of the article was privileged was insufficient. A more thorough analysis of the relationship between the photograph and the article is required. Such factors as whether it adds credibility, contributes to reader perception and understanding, or draws attention to the story are all relevant to such a determination. In Syllabus Point 3 of Swearingen v. Parkersburg Sentinel Co., supra, this Court stated, “The existence or nonexistence of a qualifiedly privileged occasion, ... in the absence of controversy as to the facts, [is a] questionf] of law for the court.” Upon remand, the issue for the trial court will be
In addition to its finding of a qualified privilege, the trial court also held that the defendant did not abuse its privilege to publish Crump’s photograph. In Parker v. Appalachian Electric Power Co.,
II
Although closely related, defamation and invasion of privacy remain distinct theories of recovery entitled to separate consideration. Possessing different historical antecedents, each requires different elements of proof. Despite the lack of clarity in the plaintiff’s complaint, it is clear that it sufficiently stated a cause of action for invasion of privacy meriting its consideration by the trial court. Therefore, it is necessary to develop the theory and to analyze the facts presented in order to determine whether genuine issues of material fact remain.
Compared to the ancient origins of the law of defamation, the law of privacy is a relatively recent phenomenon. In 1890, in what is perhaps the most influential article ever published in an American law journal, Samuel D. Warren and Louis D. Brandéis propounded a concept of a right to privacy which they asserted justified an independent tort remedy. Warren & Brandéis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890). Their classic definition of that right was that it was based on “the right ‘to be let alone.’ ”
Although Warren and Brandéis created the idea of a right of privacy, Dean William L. Prosser was the major influence on its current formulation. In a law review article published in 1960, Dean Prosser proposed,
What has emerged from the decisions is no simple matter. It is not one tort, but a complex of four. The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff, in the phrase coined by Judge Cooley, “to be let alone.”
Prosser, Privacy, 48 Calif.L.Rev. 383, 389 (1960) (footnote omitted).
Prosser’s influential analysis, which has subsequently been adopted by the Restatement (Second) of Torts and by a number of states whether by statute or by court decision, divided the tort of invasion of privacy into the following four categories: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of another’s name or likeness; (3) unreasonable publicity given to another’s private life; and (4) publicity that unreasonably places another in a false light before the public. See Prosser, 48 Calif.L.Rev. at 389; W. PROSSER, THE LAW OF TORTS § 117 (1971); Restatement (Second) of Torts §§ 652A-652-E (1977).
Although there are obviously a number of similarities between the right to privacy and the law of defamation, particularly when a “false light” invasion of privacy is involved, there are also important differences which reflect the nature of the interests protected by each. As identified by Professor Thomas I. Emerson,
Three major differences should be noted. In defamation law only statements that are false are actionable, truth is, almost universally, a defense. In privacy law, other than in false light cases, the facts published are true; indeed it is the very truth of the facts that creates the claimed invasion of privacy. Secondly, in defamation cases the interest sought to be protected is the objective one of reputation, either economic, political, or per*712 sonal, in the outside world. In privacy cases the interest affected is the subjective one of injury to inner person. Thirdly, where the issue is truth or falsity, the marketplace of ideas furnishes a forum in which the battle can be fought. In privacy cases, resort to the marketplace simply accentuates the injury.
Emerson, The Right of Privacy and Freedom of the Press, 14 Harv.C.R.-C.L.L.Rev. 329, 333 (1979).
As in the law of defamation, a defendant in an invasion of privacy suit has several defenses which may be asserted. Two of these defenses, newsworthiness and consent, allow a defendant to avoid all liability once established.
Although a person may not actively seek publicity, he or she may become a public personage by the force of consequences which make his or her activities of legitimate interest to the public. See Adreani v. Hansen,
In determining whether a manner of legitimate public interest is involved, the inquiry “focuses on the information disclosed by the publication and asks whether truthful information of legitimate concern to the public is publicized in a manner that is not highly offensive to a reasonable person.” Campbell v. Seabury Press,
The second important category of defenses available in privacy cases is consent. As in other tort actions, consent to
An additional aspect of privacy actions which prevents recovery in certain circumstances is the restriction of the protection afforded by the law of privacy to persons of ordinary or reasonable sensibilities. See Emerson v. J.F. Shea Co., Inc., supra; Garris v. Schwartz,
Recognition of the right of privacy in West Virginia, although somewhat undeveloped, is nevertheless well established. See Cantrell v. Forest Pub. Co.,
Although the Court in Roach did not attempt to precisely define the concept, it is clear that its perception of the parameters of the right included the four categories which Dean Prosser distilled from the existing body of case law two years later. Therefore, in West Virginia, an “invasion of privacy” includes (1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation of another’s name or likeness; (3) unreasonable publicity given to another’s private life; and (4) publicity that unreasonably places another in a false light before the public. See Restatement (Second) of Torts §§ 652A-652E (1977). The Court’s analysis in Roach also indicates that the types of defenses recognized elsewhere are available in privacy actions in West Virginia. Therefore, in West Virginia, the “right of privacy” does not extend to communications which are privileged under the law of defamation; which concern public figures or matters of legitimate public interest; or which have been consented to by the plaintiff. Additionally, the protection afforded by the law of privacy is restricted to persons of ordinary or reasonable sensibilities, and does not extend to the supersensitive.
Turning to the facts in the present case, the plaintiff complains that the unauthorized use of her photograph by the defendant constituted an appropriation and placed her in a false light before the public.
Because it initiated judicial and legislative recognition of a right of privacy in Pavesich and the New York statute which resulted from the public outcry following the decision in Roberson, appropriation of another’s name or likeness is the most developed of the four privacy theories of recovery. The right has primarily served to prevent the emotional harm which results from the unauthorized use of an individual’s name or likeness to promote a particular product or service.
The prohibition against the appropriation of another’s name or likeness is subject to limitations imposed by important first amendment considerations. Comment d to section 652C of the Restatement (Second) of Torts (1977) summarizes the position taken by the overwhelming majority of jurisdictions:
The value of the plaintiff’s name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity. No one has the right to object merely because his name or appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant’s benefit the commercial or other values associated with the name or likeness that the*715 right of privacy is invaded. The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks a profit, is not enough to make the incidental publication a commercial use of the name or likeness. Thus a newspaper, although it is not a philanthropic institution, does not become liable ... to every person whose name or likeness it publishes.
See also Valentine v. C.B.S., Inc.,
In order for a communication to constitute an appropriation, mere publication of a person’s name or likeness is not enough, the defendant must take for his own use or benefit the reputation, prestige or commercial standing, public interest or other value associated with the name or likeness published. In the present case, Crump’s photograph was not published because it was her likeness, it was published because it was the likeness of a woman coal miner. It was merely a file photograph used as a matter of convenience to illustrate an article on women coal miners. This type of incidental use is not enough to make the publication of a person’s photograph an appropriation. Therefore, Crump is not entitled to recover under the appropriation theory of recovery as a matter of law.
The second privacy theory of recovery which Crump advances is that of false light. As previously noted, publicity which unreasonably places another in a false light before the public is an actionable invasion of privacy. One form in which false light invasions of privacy often appears is the use of another’s photograph to illustrate an article or book with which the person has no reasonable connection, and which places the person in a false light. For example, in Leverton v. Curtis Pub. Co.,
There are obviously a number of similarities between actions for false light invasion of privacy and actions for defamation. The most prominent characteristic shared by the two causes of action is
Despite the similarities between defamation and false light causes of action, there are also a number of important differences. First, “each action protects different interests: privacy actions involve injuries to emotions and mental suffering, while defamation actions involve injury to reputation.” Goodrich v. Waterbury Republican-American, Inc.,
The United States Supreme Court first considered false light invasions of privacy in Time, Inc. v. Hill, supra. There, in analyzing New York’s statutory right of privacy in light of important first amendment considerations, it held that, “the constitutional protections for speech and press preclude the application of the New York statute to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth.”
Shortly after its decision in Hill, the Court in Curtis Pub. Co. v. Butts,
In Cantrell v. Forest City Pub. Co.,
Section 652E of the Restatement (Second) of Torts (1977) retains the Hill approach, it provides that a false light invasion of privacy occurs if “(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.” In a caveat to this section, however, the American Law Institute states,
The Institute takes no position on whether there are any circumstances under which recovery can be obtained under this Section if the actor did not know of or act with reckless disregard as to the falsity of the matter publicized and the false light in which the other would be placed but was negligent in regard to these matters.
Expanding upon the uncertainty in this area of the law, comment d to this section states, “The effect of the Gertz decision upon the holding in ... Hill has ... been left in a state of uncertainty .... If Time v. Hill is modified along the lines of Gertz v. Robert Welch, then the reckless-disregard rule would apparently apply [only] if the plaintiff is a public official or public figure and the negligence rule will apply to other plaintiffs.” Although a number of courts have applied the Restatement rule, few have given any consideration to the constitutional issues involved in determining the degree of fault required. See, e.g., Rinsley v. Brandt,
Despite this unwillingness on the part of the majority of jurisdictions and the Restatement to recognize the invalidity of Hill in light of Gertz, several commentators and at least one federal district court have concluded that the “actual malice”
Cantrell and Cohn notwithstanding, subsequent Supreme Court decisions are indicative of the trend towards moving away from Hill. In Zacchini v. Scripps-Howard Broadcasting Co.,
Due to the pronounced overlap of defamation and false light invasion of privacy, particularly in the area of their first amendment implications, we conclude that the existing inconsistency between Hill and Gertz will eventually be resolved in favor of Gertz. In the absence of a privileged communication, the test to be applied in a false light invasion of privacy action by a private individual against a media defendant is what a reasonably prudent person would have done under the same or similar circumstances. Of course, as in defamation actions, if a privileged communication is involved, the “actual malice” or abuse of privilege standard will apply.
This negligence standard need not present any potential for a “chilling effect” on the press. First, as the United States Supreme Court stated in New York Times,
Turning to the facts surrounding the present case, it is clear that genuine issues of material fact remain which preclude the granting of summary judgment for the defendant on the false light invasion of privacy cause of action. First, as in the appellant’s defamation cause of action, whether the statements in the article involved referred to the appellant with regards to her privacy cause of action is a question of fact for the jury. Second, when the communication involved in a false light case does not clearly favor one construction over another, the determination of what light it places the plaintiff is for the jury. Impossible Electronics Techniques, Inc. v. Wackenhut Protective Systems, Inc.,
Accordingly, the trial court’s order granting summary judgment for the defendant is reversed, and the plaintiff’s defamation and false light causes of action are remanded for a trial on the merits.
Reversed and remanded.
Notes
. This photograph was not the one appearing in conjunction with the 1977 article, but was one taken at that time by the newspaper’s photographer.
. Perhaps William Shakespeare put it best:
Good name in man and woman, dear my lord is the immediate jewel of their souls: Who steals my purse steals trash; 'tis something, nothing ‘twas mine, ‘tis his and has been slave to thousands: But he that filches from me my good name robs me of that which not enriches him and makes me, poor indeed.
Shakespeare, Othello, Act. Ill, Scene 3. See also Ecclesiastes 7:1 (King James) ("A good name is better than precious ointment.”).
. Although only simple negligence is required for the recovery of actual damages under this formulation, either an intentional publication of false defamatory material or a publication of false defamatory material in reckless disregard for its truth or falsity must be present before punitive damages may be recovered. Syl. pt. 1, Havalunch, Inc. v. Mazza, supra. Of course, when the plaintiff is either a public official or a public figure, he may not recover any damages for the publication of a false defamatory state ment “unless he proves that the statement was made with actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times v. Sullivan, 376 U.S. 254, 279-80,
. A central purpose of this “right of privacy" as developed by Warren and Brandéis was that a remedy should be provided for the abuses which resulted from an overactive press publishing essentially private information. They complained,
The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrustion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip ap*711 parently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Trivality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.
4 Harv.L.Rev. at 196.
. It should be noted that the same absolute and qualified privilege defenses which are available in defamation actions are also available in right to privacy actions. See Restatement (Second) of Torts §§ 652F and 652G (1977); Bond v. Pecaut,
. This "right of privacy’’ is not to be confused with the "right of publicity” first recognized in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir.1953), which remedies the unjust enrichment caused by an unauthorized exploitation of the good will and reputation that a public figure develops in his name or likeness through the investment of time, money and effort. See also Zacchini v. Scripps-Howard Broadcasting Co.,
. There is also a large body of case law in which plaintiffs have recovered for invasions of privacy resulting from the publication of their photographs which are highly offensive and of no legitimate concern to the public. See, e.g., National Bonding Agency v. Demeson,
. Professional newspersons owe complaining parties in appropriate circumstances a duty to prepare the retractions or apologies and to secure their approval of their content. Otherwise, the retraction or apology published may only serve to exacerbate the harm which has already resulted from the initial publication.
Concurrence Opinion
concurring in part and dissenting in part.
Gimbel is said to have remarked once that he knew half of his advertising budget was wasted, but he didn’t know which half. I am faced with a similar predicament in reading the majority’s daunting opinion in this relatively straightforward case. I am fairly certain that ninety percent of what has been written here is unnecessary, but I am hard pressed to find the ten percent that is germane.
Perhaps verbosity is an occupational hazard and there is a real danger in tossing around stones within the crystalline judicial chambers. Nevertheless, it is troubling to read an opinion that purports to set out mankind’s thoughts on the issue of libel from the time of Moses (who apparently believed the crime involved but a single element) to that of Brooke Shields (whose opinion as to the necessary elements has apparently not yet been articulated). The danger is not simply that overworked lawyers will be required to pore through material that is of little or no use to them, although that in itself is a considerable burden. The real danger is that in trying to lay out all of the law in a complex field, it is inevitable that some misstatements will be made.
For example, Syllabus Point 10 of the majority opinion states: “The protection afforded by the law of privacy is restricted to persons of ordinary or reasonable sensibilities, and does not extend to the super-sensitive.” This is a clear misstatement of the law. All citizens are protected by the law from unreasonable invasions of privacy. It is not a defense to demonstrate that a particular individual is “supersensitive.” If a supersensitive individual is injured by a statement that would have offended the sensibilities of the reasonable man, that supersensitive individual is entitled to recovery. Although the standard of reasonableness is an objective one, the issue is whether the particular statement or photograph constitutes an unreasonable invasion of privacy; it is not whether the harmed individual would have felt injured by a statement that would not have been injuri
I am also confused by an inconsistency in the majority’s approach to different legal theories of recovery. When dealing with the appropriation theory, the majority states as an uncontradicted fact that, “Crump’s photograph was not published because it was her likeness it was published because it was the likeness of a woman coal miner.” Therefore, the majority holds as a matter of law that Crump is not entitled to recovery under an appropriation theory. Turning to the false light theory, the majority states that whether the statements in the article referred to the appellant individually is a question of fact for the jury. This is blatantly inconsistent. If the statements and picture relate to a general female coal miner and not the individual plaintiff, no issue is left for the jury. Something that is a fact regarding one legal theory is a fact. It cannot be miraculously transformed into a “question for the jury” simply by attaching a different label to the legal theory of recovery.
The disturbing thing about this confusion is that it is simply unnecessary. This case comes before us on a motion for summary judgment. West Virginia has a long history of disfavoring such motions as a method for disposition of cases where genuine issues of material fact remain, Syl.Pt. 6, Johnson v. Junior Pocahontas Coal Co., Inc.,
This opinion is an example of the “More is Better” philosophy. The majority tells us that at the time Moses returned with his sacred tablets, libel consisted of the single element of falsehood. Today the majority refines the definition so that there are now six elements to that offense. What progress we have made! Think of the improvements that can be grafted on to the other nine commandments.
Of course the ancient edict against lying has little more to do with the modern law of defamation than the miracle of the loaves and fishes has to do with the current proscriptions against selling food without a vending license. If the majority wish to look to the Bible for guidance in writing their future opinions I would suggest instead that they turn to the Book of Proverbs where they would find the sage advice in Chapter 17, Verse 28:
Even a fool, when he holdeth his peace, is counted wise: and he that shutteth his lips is esteemed a man of understanding.